The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 1 – Feb. 18, 1994 – June 9, 1994

The Harassment of the Hammonds
Act II – Decade of the Nineties
Scene 1 – February 18, 1994 – June 9, 1994

 

Hammond-familyGary Hunt
Outpost of Freedom
April 8, 2016

This series is not about the two fires and subsequent conviction of Dwight and Steven Hammond.  It is about the abuse, by government agencies, in the two decades prior to the first fire.

Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing Part II” PDF file.

Six years prior was the last record in the eighties.  The first correspondence in the Nineties, dated February 18, 1994, refers to a letter dated June 1, 1993 {2}, from Forrest W, Cameron, Refuge Manager.  However, the records obtained have no copy of the June 1 letter.  The February letter suggests that the June letter had responded to a violation of the conditions of a Special Use Permit, and the because of that violation, that no Special Use Permit would be issued for the 1994-95 grazing season.

This letter is to notify you of my intent to not reissue a Special Use Permit to you for haying and grazing privileges on Malheur Refuge. This decision will be effective beginning with the 1994-95 haying and grazing season.

My proposal to make this decision is based upon a pattern of lack of compliance with refuge regulations over several years, and more recently the trespass of several hundred head of your cattle and your total disregard for the integrity of the new boundary fence in the Webb-Knox Spring area of Malheur Refuge. After a formal warning to you in my letter of June 1, 1993, stating that further violation of any refuge regulations could jeopardize your refuge permit, you have violated those regulations again.

Next, we have a letter from Cameron dated March 15, 1994 {3}, in which he explains that Dwight refused to meet about the permit, instead chose to meet regarding the fence at Webb-Knox Spring area.

This letter is a follow-up to my letter of February 18, 1994, wherein you were given notice of a proposal to not renew your permit for grazing and haying privileges on Malheur National Wildlife Refuge. That letter cited rationale for the proposal not to renew your permit and told you that you had 20 days to respond to me with a statement of opposition.

Subsequently on March 4, 1994, Mrs. Hammond was allowed to inspect files in our office and copied over 100 pages from them. Later that day we received a letter from you dated February 24, 1994 in which you asked to meet regarding your permit. Based on my March 14 telephone conversation with Mrs. Hammond, you chose to not meet about the permit, but instead to meet and discuss the Knox-Webb fence on March 15.

Since the February 18 letter is vague on the “lack of compliance”, it would seem logical to address the specific issue of the fence at Webb-Knox, as the cause of the denial of the Special Use Permit.

Cameron then goes on to explain the circumstances regarding the Web-Knox fence, as he sees them:

At that meeting you contended that our fence would not hold your cattle off Refuge land because it was not attached well to the rimrock at each end and that a gate was not installed on the north section. Thus cattle would get through the fence and be trapped without water inside the Refuge. You told us that you had cut the fence to allow cattle to move back and forth to water. You did not consider this to be trespass. However your description does not fit with our observations. One of your fence cuts was less than 50 yards from an existing gate that could have been opened for cattle movement. Also, we noted that the fence had been cut several days prior to when your cattle were moved into this area and you made no effort to contact us with concerns for the adequacy of our fence. Also, we saw cattle access onto the Refuge only through the three cuts in the fence and not around rimrock at the ends of the fence or at the missing gate. You refused to cooperate with us on locating more suitable gates or on repair of the fence that you cut. Your disregard for our new boundary fence and refusal to remove your cattle from Refuge land resulted in trespass of your cattle from January 28 until we fixed the fence and herded your cattle back onto your land on February 2, 1994.

On April 12, Dwight Hammond appeals Cameron’s decision {4-7}.  He makes legal argument of the failure to provide full disclosure of the circumstances that lead to the denial, a response to and FOIA (Freedom of Information Act) request that had yet to be responded to, all internal memos and discussions regarding the decision, and the pertinent regulations.  It appears that Mrs. Hammond, as described in the March 15 letter, obtained many of the documents in the preceding part (Act I), and it was becoming apparent that the Hammonds were being persecuted, in violation of rules and policies.

NOTICE OF APPEAL OF THE FINAL DECISION OF THE MANAGER OF THE MALHEUR NATIONAL WILDLIFE REFUGE DATED MARCH 15, 1994

On February 18, 1994 the manager of the identified Refuge issued a proposed decision of his intent not to reissue a Special Use Permit to Dwight Hammond, Hammond Ranches, Inc. (hereinafter, “Appellant”) for haying and grazing on said Refuge. On February 24, 1994 the appellant issued to said manager a Freedom of Information Act Request and a statement in opposition to the proposed decision which, inter alia, expressed the need for the requested information to adequately make a statement in opposition. The manager has not responded to the Request.

1. On March 15, 1994 the manager of the identified Refuge issued a final decision not to reissue a permit to appellant to hay or graze on said Refuge. Appellant denies the allegations of the proposed and final decisions, reaffirms his letters of February 24, and appealsThe pertinent regulations provide no mechanism for a Fish & Wildlife Service employee or another to receive, test, or decide with evidence, or for appellant to provide evidence or learn of or participate in the creation of a record for review. Appellant requests an agency hearing on the record for that purpose because the decision is part of a quasi-judicial proceeding wherein material facts are in dispute and material and substantial factual issues exist for the resolution of which procedural due process requires confrontation of witnesses and cross examination, all of which rights appellants claim.Appellant request that the decision be suspended for such agency hearing and thereafter re-examined with the evidence adduced as was the case in Fishback v. United States, 519 F.Supp. 190 (D.N.M. 1981).

2. Although appellant is entitled to judicial review of the final administrative determination of the Department of the Interior, the procedure provided to appellant does not create a record which can be reviewed which would include reasonably specific allegations by the manager and appellant’s response thereto. Appellant is not adequately informed of the reason for the decision or the allegations relied upon by the manager in making his decision. If the manager now or hereafter assembles any record, it will be unverified and unverifiable allegations and arguments in any form and from any source selected, post hoc, by the manager without providing appellant with the opportunity of examination and response, and it is, therefore, impossible for a judicial review to test the final administrative determination against the applicable legal standards. Appellant is thereby deprived of the right of judicial review to the extent permitted by law.

3. The Department of the Interior has adopted an appeal process which provides procedural due process by and through the Office of Hearings and Appeals (see 43 CFR Part 4, Subparts A, B, and E), and such process can be applied by said Service Appellant asserts that the lack of this which is requested and its consequence is reason for appeal, and if the request for a hearing on the record is denied, is reason for concluding that the manager’s actions are unlawful.

4. Appellant requests request an opportunity for an oral presentation at the headquarters of the Refuge. Appellant requests that said presentation shall occur after the manager responds to appellant’s request for information and that the presentation includes an opportunity to present documentary evidence.Appellant requests that said presentation shall also include an opportunity to examine under oath and on the record the manager and such other and additional persons as the appellant may then call.

5. Appellant requests the employees, officers and agents of the Service: (1) to provide appellant with a copy of every document which is filed in the administrative record of the final decision and every document which was reviewed and considered in reaching it, and (2) inform appellant of and provide appellant with evidence of every ex parte communication between the decider or members of his staff with the area manager or regional director or members of their staff relating to the subject matter of the final decision, and (3) provide appellant with a specific inventory at the’ time of the oral presentation of every writing which the manager claims is part of the administrative record.

6. This appeal is filed with Sanford Wilbur, Refuge District Supervisor, C/O Regional Director, U.S. Fish and Wildlife Service, 911 NE 11th Avenue, Portland, OR 97232-4181, the official which said final decision identifies as the appropriate official pursuant to 50 CFR 25.45(f).

On April 20, 1994, Sanford R. Wilbur, Refuge District Supervisor, denies the appeal {8}.  Dwight, on May 18 {9-15} then files a more comprehensive appeal to Regional Director Marvin Plenert.  The referenced exhibits are not within the documents obtained, including the April 29, 1994 letter and photographic and map exhibits.

NOTICE OF APPEAL OF THE FINAL DECISION OF THE MANAGER OF THE MALHEUR NATIONAL WILDLIFE REFUGE DATED MARCH 15, 1994

On February 18, 1994 the manager of the identified Refuge issued a proposed decision of his intent not to reissue a Special Use Permit to Dwight Hammond, Hammond Ranches, Inc. (hereinafter, “Appellant”) for haying and grazing on said Refuge. On February 24, 1994 the appellant issued to said manager a Freedom of Information Act Request and a statement in opposition to the proposed decision which, inter alga, expressed the need for the requested information to adequately make a statement in opposition.

On March 15, 1994 the manager of the identified Refuge issued a final decision not to reissue a permit to appellant to hay or graze on said Refuge.

The manager failed to respond to the Freedom of Information Act Request prior to April 12, 1994 and on that day appellant gave notice of appeal from the final decision to the appropriate area manager. Thereafter, and after the date on which said notice was required to be filed the manager partially responded by mailing on April 14, 1994.

On April 20, 1994 the appropriate area manager affirmed the final decision. On April 27, 1994 appellant renewed and amplified the Freedom of Information Act Request, such request is unanswered, and appellant continues unable to adequately make a statement in opposition.

Because of the application of 50 CFR 25.45, the time for appeal to the regional director expires on May 20, 1994 and, because of the failure of such officers to inform appellant as to reasons for making the identified decisions in any particular with respect to which appellant would be able to provide responding evidence, appellant is unable to do more than conjecture and respond in the same degree of generality as used by said decisions.

Copies of the proposed decision and the final decision, appellant’s notice of appeal therefrom, and the affirming decision are attached hereto. All statements and requests within said notice of appeal are incorporated by this reference herein and reiterated as if herein expressed haec verba [in these words].

Appellant denies the allegations of the proposed and final decisions, reaffirms his letters of February 24, and April 27, 1994, and appeals to the regional director.

7. The proposed decision alleges that there exists a “pattern of lack of compliance with refuge regulations over several years, and more recently the trespass of several hundred head of cattle and your total disregard for the integrity of the new boundary fence in the Webb-Knox Spring area..” The final decision alleges, on the one hand, that appellant’s response thereto did not pertain to “the permit” but, on the other hand, pertained to the “Knox-Webb fence”. Thus, appellant cannot certainly identify the reason for the decision from the text of the proposed and final decisions, appellant assumes that the reason involves a controversy respecting the fencing by Service personnel of the Diamond-Frenchglen Wagon Road.

This controversy is explained in appellant’s letter to the regional director dated April 29, 1994, a copy of which is attached hereto and by this reference incorporated herein. The statements within appellant’s letter are true. No officer of the Service has responded to said letter nor has the meeting referred to therein been called by any officer of the Service.

Neither the proposed or final decision identifies any other act or acts upon which it claims to justify its allegation of a “pattern” of noncompliance or any allegation of any noncompliance with regulations. Appellant denies any pattern of noncompliance or any noncompliance with regulations pertaining to its use of the refuge. Attached are letters of persons who are or were employees of the Refuge or those holding permits upon the Refuge; these persons have had the best opportunity to observe and evaluate appellant’s grazing and haying practices within the Refuge.

The final decision alleges that an employee of appellant made “overt threats on the life and safety of refuge employees”. Various employees of the refuge have carried side arms during field conferences with employees of appellant and others, and employees of appellant have never been armed. The Service armaments created an environment which was not conducive to reasoned dialogue and at field meetings which pertained to the Diamond-Frenchglen Wagon Road, the armaments provoked anger on some occasions, but the exchange of words never erupted into any physical touching by any employee of appellant or any other kind of response that could be reasonably interpreted as a “threat on the life and safety of refuge employees.” Moreover, given the armament of the Service employees on such occasions and the lack of armament of employees of appellant, the refuge employees could not have reasonably believe themselves threatened.

8. Appellant is an Oregon corporation and all of the stockholders are Dwight and Susan Hammond and their son, Steven. The corporation has been entitled to, and has used the refuge for livestock grazing and haying continuously since 1965. After that time, appellant moved livestock and vehicles over the Diamond- Frenchglen Wagon Road, and its employees know the location and course of said Road.

The Diamond-Frenchglen Wagon Road has the protection of Section 2477 and has been in public use since at least December 7, 1877. Attached is a copy of a map of the area prepared by authority of the United States Surveyor General. There are other maps predating 1976, currently available, disclosing the existence and course of said Road, including Metsker’s Map of Harney County, Baca Lake, Oregon Quad of the U.S. Department of the Interior Bureau of Land Management, Malheur National Wildlife Refuge, Branch of Engineering, 1962, County Map Service, Harney County, Oregon: Eagle Productions, Inc.

From south to north, the Wagon Road traverses Range 32 1/2 East of the Willamette Meridian through Townships 32 and 31. Attached is a copy of the Harney County Tax Map disclosing features existing prior to 1976. The Wagon Road begins at Frenchglen to the west of Township 32, enters the Township in Section 6, courses south to Section 8, thence north through Sections 8 and 5. Appended to the map of Township 32 is a photograph of a point along the course of the Wagon Road. The photograph references a number which corresponds to the indicated point.

Appended to the map of Township 31 are photographs of points along the course of the Wagon Road, and each references a number which corresponds to the indicated points. Within appellant’s attached letter dated April 29, page 2, paragraph 1, there is the reference to a branch of the main stem running to the east from the Clemens Corral, and it is this branch of the Wagon Road that is used by appellant and others in movements of livestock and vehicles to the east. This branch begins at a crossing in the southeast quarter of the southeast quarter of Section 32, marked number 2 and continues to the southeast into Township 32.

Photograph number 3 is a gate within an old fence running in a north-south direction, and the gate is through the branch of the Wagon Road previously described. Photograph number 4 is a view facing north along the old fence. This fence had been regarded as the boundary of the Refuge, whereas the legal boundary was approximately one mile east at which photograph number 5 was taken to the west, looking at the Wagon Road. Photograph number 6 is a view of the Wagon Road looking west to the gate shown on photograph number 3.

Photograph number 7 is along the main stem of the Wagon Road looking north toward Bridge Creek. Numbers 8 and 9 are along the main stem of the Wagon Road looking to the north. The fence in view is the continuation of that shown on number 4 as marking what had been previously regarded as the eastern boundary of the Refuge.

Photograph number 10 is along the main stem of the Wagon Road looking north through a gate in an east-west fence line installed in approximately 1982. This gate was occasionally locked by Refuge employees. Number 11 is a view along the Wagon Road looking north. Photograph number 12 is along the main stem of the Wagon Road looking north through a gate in the fence line, the boundary of the Refuge east of the midsection line of Section 16. Number 13 is a view looking north along the main stem.

Photograph 14 is a view of the land of appellant east of the Refuge boundary along the midsection line of Section 16, through which the main stem of the Wagon Road is approaching the boundary. The boundary fence was constructed late in 1993 and crossed the Wagon Road without gating it. Appellant’s employee was first aware of the fence closing of the Wagon Road as he was moving hay with a tractor and trailer. It was impossible for him to reverse his direction or communicate with Refuge employees, and he cut the fence across the Road. This is the incident referred to in the third paragraph of the final decision of March 15, 1994. Number 15 is a view of the Wagon Road within the Refuge and number 16 is a view of the Wagon Road as it approaches the Refuge boundary with the land of appellant, shown to the east of the rock jacks. However, the employees of the Refuge failed to install a gate between the rock jacks and exposed the Refuge lands and appellant’s private lands to the use of livestock grazing on the other.

The Wagon Road leaves the Refuge near the point of photograph number 16 at the northeast quarter of the northeast quarter of Section 16 and the Road continues to the northeast and to Diamond, Oregon.

9. This appeal is filed with Regional Director Marvin Plenert, United States Department of the Interior, Fish and Wildlife Service, 911 NE 11th Avenue, Portland, OR 97232-4181, the official which is identified as the appropriate official pursuant to 50 CFR 25.45(f).

In June 9, 1994 letter {16-18}, Marvin Plenert denies the appeal.  He explains his decision by referring to incidents that are not substantiated in the obtained documents.

To be continued

 

The Harassment of the Hammonds – Act I – Scene 1 – Introduction

The Harassment of the Hammonds – Act I – Scene 2 – October 24 1986 – March 20 1987

The Harassment of the Hammonds – Act I – Scene 3 – April 2, 1987 – April 15, 1987

The Harassment of the Hammonds – Act I – Scene 4 – May 6, 1987 – April 22, 1988

The Harassment of the Hammonds – Act I – Decade of the Eighties- Scene 5 – May 2, 1988 – May 9, 1988

 

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 2 – June 28, 1994 – Feb. 22, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 3 – Feb. 28, 1997 – May 21, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 4 – May 22, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 5 – June 30, 1997 – Aug. 4, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 6 – Feb. 25, 1998 – Jan. 12, 2004

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